Can My Employer Refuse to Promote Me If I Do Not Speak English Well?

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Jun 1, 2017

Can My Employer Refuse to Promote Me If I Do Not Speak English Well?

Posted By
Mahir Nisar Attorney at Law

Many people come to New York from other countries to live and work. It
is against the law for any New York City or Long Island employer to refuse
to hire someone based on his or her
country of origin. Similarly, an employer cannot refuse to promote or otherwise discriminate
against an existing employee based on where he or she comes from.

Can Employers Have “English-Only” Rules in the Workplace?

Given that many non-U.S. born workers do not speak English as their first
language, or if they do speak the language it is with a noticeable accent,
can an employer discriminate on that basis? The answer is a qualified
yes. If the employer can demonstrate that a person's accent or inability
to speak English materially interferes with a job requirement, it may
not constitute discrimination to treat that employee differently. Put
another way, if a particular job requires “effective oral communication
in English,” then it is not illegal to refuse to hire or promote
an employee who cannot speak in English.

This does not mean, however, that employers can adopt blanket “English-only”
policies in the workplace. Language restrictions are only justified to
the extent the employer can prove it is necessary to conduct business.
So while an employer could require an employee to only speak English when
dealing with customers, it cannot mandate such rules when employees are
on a break or having lunch on the company's premises.

State Agency Permitted to Condition Promotion on Language Ability

Here is an illustration of how courts deal with language-based employment
policies in practice. This is from a
recent case in upstate New York. The employee in this case works for the New York
State Department of Transportation. He was born in what used to be known
as the Soviet Union and does not speak English as his primary language.

The employee alleged that the Department refused to offer him a promotion
based on his “national origin.” The Department's hiring
committee responded that he “was not selected for promotion based
on their concerns that he could not communicate effectively in the English
language.” The New York Supreme Court's Fourth Appellate Department
said this was not illegal employment discrimination. It agreed with the
Department of Transportation that English-language skills were “reasonably
related” to the supervisory role the employee sought. This was therefore
a “legitimate, independent and nondiscriminatory reason” for
denying the promotion.

Have You Been the Victim of National Origin Discrimination?

Even if requiring English for certain employment opportunities is not illegal,
there are other types of language-based discrimination that may still
run afoul of the law. For instance, an employer cannot repeatedly denigrate
or mock an employee based on their accent or difficulty with speaking
English. Such activities may contribute to a “hostile work environment.”

If you have been the victim of language-based or national origin discrimination,
you need to speak with a
New York employment law attorney who can advise you of your rights. You may be entitled to compensation
under federal and state civil rights laws. Contact the Law Offices of
Mahir S. Nisar today to speak with a qualified attorney.